United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE.
Upton asserts claims against Day & Zimmerman NPS
(“D&Z”) under the Americans with Disabilities
Act, 42 U.S.C. § 12111 et seq.
(“ADA”), for disability discrimination (Count
II), prohibited medical inquiry (Count III), and retaliation
(Count IV). Doc. 1. Presently before the court is
Upton's motion for partial summary judgment as to Counts
II and III, doc. 51, and D&Z's cross-motion for
summary judgment on all claims, doc. 55. Both motions are
fully briefed, docs. 51, 56, 59, 61, 62, 63, and ripe for
review. For the reasons stated below, Upton's motion is
due to be denied, while D&Z's motion is due to be
granted fully as to Counts I, III, and IV fully, and solely
as to the regarded as claim in Count II.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(a), summary judgment is
proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” “Rule 56(c)
mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The moving party bears the initial burden of proving the
absence of a genuine dispute of material fact. Id.
at 323. The burden then shifts to the non-moving party, who
is required to go “beyond the pleadings” to
establish that there is a “genuine issue for
trial.” Id. at 324 (internal citations and
quotation marks omitted). A dispute about a material fact is
“genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
court must construe the evidence and all reasonable
inferences arising from it in the light most favorable to the
non-moving party. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157 (1970); see also Anderson, 477
U.S. at 244 (all justifiable inferences must be drawn in the
non-moving party's favor). Any factual dispute will be
resolved in the non-moving party's favor when sufficient
competent evidence supports that party's version of the
disputed facts. But see Pace v. Capobianco, 238 F.3d
1275, 1276-78 (11th Cir. 2002) (a court is not required to
resolve disputes in the non-moving party's favor when
that party's version of events is supported by
insufficient evidence). However, “mere conclusions and
unsupported factual allegations are legally insufficient to
defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citing
Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560,
1563 (11th Cir. 1989)). Moreover, “[a] mere
‘scintilla' of evidence supporting the opposing
party's position will not suffice; there must be enough
of a showing that a jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577
(11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
standards governing cross-motions for summary judgment are
the same, although the court must construe the motions
independently, viewing the evidence presented by each moving
party in the light most favorable to the non-movant.”
Lozman v. City of Riviera Beach, 39 F.Supp.3d 1392,
1404 (S.D. Fla. 2014) (citing Shazor v. Professional
Transit Management, Ltd., 744 F.3d 948 (6th Cir. 2014));
see also U.S. v. Oakley, 744 F.2d 1553, 1555 (11th
Cir. 1984) (applying the Rule 56 summary judgment standard
where both parties moved for summary judgment). However,
“cross-motions for summary judgment will not, in
themselves, warrant the court in granting summary judgment
unless one of the parties is entitled to judgment as a matter
of law on facts that are not genuinely disputed.”
Bricklayers, Masons & Plasterers Int'l Union v.
Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir.
suffered various injuries in a car accident in 1989 that
required ongoing medical treatment. Docs. 51 at 8; 56 at 7-8.
In 2007, Upton's primary care physician referred him to
Dr. Michael Gibson, who subsequently diagnosed Upton with
lumbar radiculopathy, defined as pain in his lower back
radiating to both legs. Docs. 51 at 9-10; 56 at 8; 61 at
24-25. Since that time, Upton has taken opiates prescribed by
Dr. Gibson, including MS Contin, a long-acting oral form of
morphine. Docs. 51 at 5, 9-10; 56 at 8.
the primary maintenance contractor for several Southern
Company facilities, employed Upton, a union pipefitter,
beginning October 22, 2010. Docs. 51 at 6; 56 at 5, 11. As is
customary in the industry, employers hire union pipefitters
on a temporary basis and lay them off once a job is
completed. Docs. 51 at 5; 56 at 5-6. Upton has had at least
seven separate temporary stints for D&Z. Doc. 51 at 5.
Upton has self-identified as disabled on the employee
information form he submitted at the beginning of each work
stint. Id. at 6.
terms and conditions of Upton's employment are governed
by the Powerhouse Maintenance Agreement (“PHMA”)
between Upton's union and Alabama Power, a Southern
Company subsidiary. Docs. 51 at 5; 56 at 5, 9-10. This
includes the requirement that all workers pass a five-panel
drug test before working at any power plant, unless they have
been tested in the past six months. Docs. 51 at 5; 56 at 6.
Each time Upton has taken a drug test, he has tested
non-negative for opiates and successfully completed the
medical review process to verify his prescriptions are
legitimate, including submitting a letter from Dr. Gibson
attesting to Upton's ability to work safely while taking
the prescription. Docs. 51 at 5-6; 56 at 11.
January 2015, Upton's union referred him to D&Z for a
job at the Gaston Plant in Wilsonville, Alabama. Docs. 51 at
6; 56 at 12. The sole decisionmaker for employment at Gaston
is Howard Humphrey, docs. 51 at 7; 56 at 11, who had
previously approved Upton for employment, doc. 56 at 11. For
the 2015 referral, in compliance with the PHMA, Upton took a
drug screen and submitted the supporting letter from Dr.
Gibson. Doc. 51 at 6. In this letter, in addition
to verifying the prescription and attesting to Upton's
ability to safely work while taking the medication, Dr.
Gibson informed D&Z that requiring employees to disclose
their medications may violate the ADA. Id. at 6-7.
Upton filed this lawsuit alleging violations of the ADA, in
that he was not rehired because Humphrey allegedly accessed
Upton's drug test results and learned what prescription
medications Upton was taking, and in retaliation for the
allegedly protected activity of submitting Dr. Gibson's
the court are cross-motions for summary judgment. Upton moves
partially on Count II (disability
discrimination)-specifically on the issues of being an
individual with a disability under the actual disability,
record of disability, and regarded as theories, and a
qualified individual-and fully on Count III (prohibited
medical inquiry). D&Z has moved on all counts. The court
begins by examining the parties' cross-motions on Counts
II and III, then turns to D&Z's motion on Count IV.
Disability Discrimination-Count II
Count II, Upton alleges D&Z violated the ADA by refusing
to rehire him on the basis of “his previous disclosures
of his disability status and his prescriptions for
medication, ” “his record of disability, ”
or “his actual disability.” Doc. 1 at 10-12. To
state a prima facie case of discrimination under the
ADA, a plaintiff must show that (1) he is disabled; (2) he is
a qualified individual; and (3) he suffered unlawful
discrimination because of his disability. Pritchard v.
Southern Co. Servs., 92 F.3d 1130, 1132 (11th Cir.
1996). The parties disagree on whether Upton can make these
showings, with Upton arguing that the court should grant him
summary judgment on the first two prongs, and find as a
matter of law that he is a qualified individual with a
Whether Upton is an ...